Posted
by
Soulskill
on Wednesday February 27, 2013 @08:12AM
from the it's-always-political dept.

An anonymous reader sends this excerpt from a blog post by Taren Stinebrickner-Kauffman, founder of corporate watchdog SumOfUs.org and partner of the late Aaron Swartz:
"The DOJ has told Congressional investigators that Aaron's prosecution was motivated by his political views on copyright. I was going to start that last paragraph with 'In a stunning turn of events,' but I realized that would be inaccurate — because it's really not that surprising. Many people speculated throughout the whole ordeal that this was a political prosecution, motivated by anything/everything from Aaron's effective campaigning against SOPA to his run-ins with the FBI over the PACER database. But Aaron actually didn't believe it was — he thought it was overreach by some local prosecutors who didn't really understand the internet and just saw him as a high-profile scalp they could claim, facilitated by a criminal justice system and computer crime laws specifically designed to give prosecutors, however incompetent or malicious, all the wrong incentives and all the power they could ever want. But this HuffPo article, and what I’m hearing from sources on the Hill, suggest that that’s not true. That Ortiz and Heymann knew exactly what they were doing: Shutting up, and hopefully locking up, an extremely effective activist whose political views, including those on copyright, threatened the Powers That Be."

They didn't. They said an arguably political paper "played a role in the prosecution" . They don't consider the paper political or they don't consider it the whole motivation. It's a short paper, probably worth reading so you can make up your own mind how wrong they were.

The thing is, he really didn't break the law, he took freely available, public domain documents from JSTOR and published them on the internet so that the public didn't have to pay 10 cents per page to get access to them. The law being used against him was the 1986 Computer Fraud and Abuse Act (CFAA), specifically the section that was put in for ATMs. Lawyers creatively turned this section of the CFAA to apply to terms of service agreements by saying the 10 cents per page was a network based "financial transaction." Basically, they used a law that was never designed for a networked computing based world and applied it to a network computing based world. The same law basically bans the world wide web, requiring you to have explicit permission to visit any computer on the internet, so congratulations on committing several felonies by browsing today.

That's part of the issue. If you break the TOS, you have voided the contract granting permission to access a computer system. If you access it, you are accessing a computer system without authorisation - a criminal offence in the US under the Computer Fraud and Abuse Act. Legally, it's really no different from cracking your way in. That's why the maximum penalty he was threatened with was so high, and why there is such an outcry: The law used was not intended to criminalise violating a website TOS, but it implicitly does just that.

Exactly. In particular, what they said was that due to this manifesto of his, they believed that his intent was to make the documents he was downloading publicly available - that is, violate the copyright by redistributing them. In other words, he publicly said, "We need to download scientific journals and upload them to file sharing networks," and was in the process of doing said downloading. They had reasonable cause to believe that his intention was to upload these papers to file sharing networks, in violation of the law, as stated in his manifesto. While his intention to break the law might have been "politically motivated," the prosecution was based on his stated intention to break additional laws, not on silencing his political beliefs.